ASF_GEN_PolitiquePro bono_2011_EN

ASF AND PRO BONO DISCUSSION PAPER

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Introduction ............................................................................................... 2 2.

Pro bono, what is it? .................................................................................. 2 2.1.

Definition of pro bono ............................................................................. 2 2.1.1.

The lack of a consistent definition of pro bono......................................... 2 2.1.2.

Pro bono from the legal profession’s perspective ..................................... 2 A. United Kingdom ..................................................................................... 2 B. United States ......................................................................................... 3 C. International Bar Association ................................................................... 4 2.1.3.

Pro bono from the international law firm perspective ............................... 4 2.2.

Analysis of the key components of pro bono work ...................................... 4 This is also known in French as aide legal, and can either be full or partial. ................... 5 3.

ASF and the development of pro bono ........................................................ 5 3.1.

Objective – pro bono as a complementary access to justice mechanism ........ 5 3.1.1.

Objective ........................................................................................... 5 3.1.2.

Pro bono and access to justice .............................................................. 6 3.1.3.

The place of pro bono within access to justice mechanisms ...................... 6 3.1.4.

The standard of service and commitment of pro bono lawyers .................. 7 3.2.

Strategy – How can pro bono be promoted? .............................................. 7 3.2.1.

Promotion of the pro bono model .......................................................... 7 A. The role of ASF and its missions in relation to local Bar Associations ............. 7 B. The role of the ILN ................................................................................. 8 a.

The ILN pro bono model ....................................................................... 8 b.

Estimate of the hours/budget of ILN pro bono activities ........................... 9 C. The contribution of international law firms ................................................. 9 a.

The association of international law firms with ASF’s ILN .......................... 9 b.

Promotion of pro bono to lawyers in countries where ASF works................ 9 c.

Support to ASF programmes (Fundraising) ............................................10 3.2.2.

The cost issue of pro bono work ...........................................................10 A. The human and financial impact of pro bono work .....................................10 B. Compensated pro bono work ..................................................................10 3.2.3.

The issue of conflict of interest.............................................................11 4.

Conclusion .................................................................................................11

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1. Introduction The aim of this paper is to suggest some guidelines for reflection on the objectives of ASF in relation to pro bono as a complementary access to justice mechanism, and the strategy that can be adopted to achieve those objectives.

2. Pro bono, what is it?

2.1.

Definition of pro bono

2.1.1. The lack of a consistent definition of pro bono When attempting to define the concept of pro bono, an initial observation has to be made: there is not “one” consistent and universally accepted definition. Pro bono is a phrase derived from Latin meaning “for the public good”.

In order to clarify this concept better, it is important to analyze some of the definitions used by the various justice sector stakeholders and to examine the key and recurrent components of pro bono work.

2.1.2. Pro bono from the legal profession’s perspective The various bar associations usually have their own definition, with which other organisations may or may not concur.

A. United Kingdom The definition of pro bono is contained in the Pro Bono Protocol, developed by the Bar Pro Bono Unit and LawWorks. This protocol has received wide support from individuals involved in the provision of pro bono services (Bar Council, Bar Pro Bono Unit, law firms, universities, etc.).

According to this protocol, pro bono is defined as follows: What is Pro Bono Legal Work?

1.1 When we refer to Pro Bono Legal Work we mean legal advice or representation provided by lawyers to individuals and community groups who cannot afford to pay for that advice or representation and where public funding is not available.

1.2 Legal work is Pro Bono Legal Work only if it is free to the client, without payment to the lawyer or law firm (regardless of the outcome) and provided voluntarily either by the lawyer or his or her firm.

1.3 Pro Bono Legal Work is always only an adjunct to, and not a substitute for, a proper system of publicly funded legal services.

How should Pro Bono Legal Work be done?

2.1 Pro Bono Legal Work should always be done to a high standard. That means in particular that:

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2.2 The availability of appropriate publicly funded legal advice or representation should always be considered before a lawyer undertakes Pro Bono Legal Work.

2.3 When a lawyer is requested to agree to undertake a piece of Pro Bono Legal Work the lawyer should give his/her decision within a reasonable time.

2.4 The terms on which the Pro Bono Legal Work is undertaken including the circumstances in which the relationship may be terminated should be made clear at the outset.

2.5 The Pro Bono Legal Work should only be undertaken by a lawyer who is adequately trained, has appropriate skills and experience and, where necessary, is adequately supervised for the work in question.

2.6 The lawyer undertaking a piece of Pro Bono Legal Work (and where appropriate his or her supervisor) should have no less than the minimum level of legal expertise and experience as would be required if the particular work in question was paid work.

2.7 In no case should the client be misled as to the lawyer's skill or ability to undertake the Pro Bono Legal Work.

2.8 Once a lawyer has agreed to undertake a piece of Pro Bono Legal Work the lawyer (and if appropriate his or her firm) must give that work the same priority, attention and care as would apply to paid work.

2.9 Pro Bono Legal Work must not be undertaken without appropriate insurance.

2.10 A lawyer in doubt or difficulty in relation to a piece of Pro Bono Legal Work should seek advice from a Pro Bono organisation or from the Bar Council, the Law Society or the Institute of Legal ExecutivesÂť.1 B. United States In the United States, pro bono is not statutorily defined.

However, The American Lawyer Magazine and the Pro Bono Institute define pro bono as: “[the] activities of the firm undertaken normally without expectation of fee and not in the course of ordinary commercial practice and consisting of (i) the delivery of legal services to persons of limited means or to charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of persons of limited means; (ii) the provision of legal assistance to individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights; and (iii) the provision of legal assistance to charitable, religious, civic, community, governmental, or educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate"2.

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http://www.barprobono.org.uk/?cID=pro_bono_protocol http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=900005556047

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C. International Bar Association On 16 October 2008, the International Bar Association adopted the following definition: “The Council calls on lawyers, law firms and bar associations to provide pro bono legal service, which is work by a lawyer of a quality equal to that afforded to paying clients, without remuneration or expectation of remuneration, and principally to benefit poor, underprivileged or marginalized persons or communities or the organizations that assist them»3.

2.1.3. Pro bono from the international law firm perspective We are currently seeing a huge increase in the number of pro bono programmes undertaken by various law firms.

This change has coincided with the development of Anglo-Saxon law firms, where a strong pro bono culture has existed for many years. By establishing themselves in many regions of the world, these firms have helped to export and cultivate the culture of legal pro bono.

Law firms develop their pro bono programme in accordance with their personal vision of this activity. However, numerous international firms refer to the Pro Bono Institute definition given above.

The elements of this definition emerged when managers of these law firms were interviewed about their vision of pro bono and its place within their professional duties. Thus, for David Morley, senior partner at Allen&Overy, “Volunteering our legal expertise for free, to those who would otherwise not have access to justice, goes right to the heart of our business. It's not something we only do in the 'good times' - it's something that makes good business sense and has long been part of our culture”4.

Within these law firms there is a genuine desire to professionalise pro bono work. They have in fact moved from a rather informal approach, based on good intentions, to a much more professional vision: a clear definition of the pro bono strategy within the firm, as well as set objectives; selection of lawyers based on required experience rather than personal preference or convenience, in order to have the greatest added value to each case; adherence to deadlines – pro bono activity becoming an activity in its own right and no longer systematically taking second place to other activities of these law firms; at least the same level of attention given to billable cases as to pro bono cases; and evaluation of lawyers on both billable and pro bono activity; enhanced prestige for pro bono work; etc.

2.2.

Analysis of the key components of pro bono work

Based on an analysis of the definitions mentioned in point 2.1, it is apparent that the vast majority place emphasis on following three key components: -

High standards: the quality of the service; the method: the lack of remuneration for the lawyer; and

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http://www.internationalprobono.com/declarations/ http://www.allenovery.com/AOWEB/Knowledge/Editorial.aspx?contentTypeID=1&contentSubTypeID=7944&pr efLangID=410&itemID=48822&langID=410 4

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the objective: support for vulnerable people (“for the public good”).

It must be stressed that pro bono cannot be restricted to any single one of these components. It is the combination of all three components that allows us to characterize a certain legal service as pro bono.

However, analysis of survey questionnaires sent to members of the International Legal Network (ILN) shows that the "objective: for the public good” component is considered to be most characteristic of pro bono work.

This coincides with the ASF orientation, which focuses the services of ILN members primarily on “causes of public interest”: strengthening the capacities of lawyers of a Bar Association, organising a monitoring mission for a trial “endured” by a lawyer in danger (Article 16 programme) or defending a journalist prosecuted in Rwanda (issue of freedom of expression).

2.3.

Pro deo and pro bono

The concept of pro bono is often associated and even confused with pro deo.

Indeed, depending on the context, the juxtaposition of these two phrases may lead to confusion since each refers to a somewhat different situation.

Pro deo is the expression used in some countries to describe the method of intervention by a lawyer within the context of legal aid (known in Belgium as aide juridique and in France as aide juridictionnelle). This aid equates to legal assistance provided free-of-charge to a financially destitute accused party, for which the lawyer is compensated by the State or by means of a legal assistance fund (sometimes managed by the Bar Associations themselves).

This is also known in French as aide legal5, and can either be full or partial.

Of course, it is up to the State to establish mechanisms that allow the principle of access to a court to be made effective, even for those who lack the financial means to pay for the services of a lawyer. In a number of European countries, such mechanisms have been established following the ECHR judgment in the Airey v.

Ireland case, on 9 October 1979.

In the countries where ASF works, such mechanisms still need to be established and ASF carries out substantial advocacy work with Bar Associations and public authorities so that they will take up this obligation, which is of primary importance in criminal matters (in the context of rights of the accused)6, but should clearly be extended to other matters.

3. ASF and the development of pro bono 3.1.

Objective – pro bono as a complementary access to justice mechanism

3.1.1. Objective

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“From legal aid (formerly known as pro deo) to judicial assistance, there are solutions” (Excerpt from )

http://www.avocat.be/l-avocat/combien-coute-t-il/vous-n-avez-pas-les-moyens-de-payer,fr,28.html 6

article 6§3 of the ECHR; article 7 of the ACHPR; article 14 of the Covenant on Civil and Political Rights

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As part of its overall objective of developing access to justice for the most vulnerable members of society, ASF now wishes to develop an innovative strategy for promoting pro bono in the countries where it works. This strategy is already integrated in ASF’s support to the Burundi Bar Association, which is financially supported by DFID (UK official aid agency).

The objective is to have Bar Associations in countries where ASF works to support the obligation of each lawyer to handle annually a certain number of cases on a pro bono basis, and to incorporate this mode of free assistance into as a complementary mechanism for access to justice, alongside compensated legal aid.

3.1.2. Pro bono and access to justice Access to justice is now recognised as a basic right. Without effective access to justice for all citizens, the law would have no effect and the rule of law would not exist.

This basic right imposes a certain number of obligations on the State including the obligation to ensure effective access to legal services provided by independent lawyers for the benefit of the most vulnerable. The funding for this aid is incumbent on the authorities and the State must therefore contribute towards the compensation of legal practitioners who offer their services to the beneficiaries of the aid (legal aid system – usually organised by the State itself and by the Bar Associations).

However, this mechanism does not ensure effective access to justice for those who do not have the required financial means to cover the costs of a trial.

Pro bono can therefore, to some extent, contribute to the effectiveness of access to justice.

Moreover, in certain countries (mainly those of Anglo-Saxon tradition), the pro bono system is particularly well developed, to the point that the service provision is considered an ethical obligation. Thus, in the United States, lawyers are obliged to provide 50 hours of pro bono services each year. In some cases, lawyers that fail to comply with this duty may be obliged to make a financial contribution to this type of intervention in an amount based on the value of the time that was not donated.

Lastly, we should not underestimate the personal commitment of many lawyers who are conscious of the social role of their profession (cf. Point 3.1.4. below).

3.1.3. The place of pro bono within access to justice mechanisms It is quite clear that pro bono cannot be a substitute for adequate state legal/judicial aid funding. It is a complementary access to justice mechanism.

Obviously, we cannot force lawyers to compensate for the State's obligations given that they already bear quite a heavy burden in relation to their pro deo activities.

Some Bar Associations expressly share this view, such as in the United Kingdom where pro bono is promoted without becoming a substitute for public legal aid mechanisms (Cf. p.2)

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3.1.4. The standard of service and commitment of pro bono lawyers The idea that the pro bono system is to some extent a form of amateurism and does not allow vulnerable accused persons to benefit from a high standard of defence is nonsensical and reflects a total lack of knowledge of this practice.

If it were true, those committed interventions that have resulted in successful landmarks in the history of human rights would never have been possible (ex. the fight against racial discrimination in the USA; the fight for the right of people to self-determination during the decolonisation process; etc.)

Even though the financial cost and the economic impact for the lawyer working on a case on a pro bono basis must clearly be taken into consideration in this discussion of the development of pro bono, the spirit of selflessness remains central to the profession of lawyer. In fact, one of the core duties of the legal profession is and shall continue to be the provision of services to accused persons without discrimination.

The work undertaken by many lawyers in cause-lawyering activities, a practice through which lawyers support the development of a fairer society by offering their support to a particular cause, usually of a sensitive nature, perfectly illustrates this selfless commitment.

Therefore, the quality of the lawyer's services does not depend on the condition of remuneration.

The success of ASF’s work in programmes, such as “Justice for all in Rwanda" where hundreds of lawyers worked on a pro bono basis for years, substantiates this. The work carried out since 2010 through the ILN of ASF also brilliantly illustrates the dedication of the legal profession to pro bono.

This pro bono culture is also spreading to large international law firms where there is clearly a genuine concern for maintaining a high level of commitment and professionalism in this area.

3.2.

Strategy – How can pro bono be promoted?

3.2.1. Promotion of the pro bono model A. The role of ASF and its missions in relation to local Bar Associations It is very important to work as a priority with local Bar Associations and Bar Presidents, given that they are the guardians of the ethical rules that govern the profession. These entities are best able to promote greater awareness of the importance of pro bono services within the role of lawyers. In this regard, self-regulation of the profession is essential. The professional origin of the rule makes it more democratic in nature – it is negotiated rather than imposed – as well as more flexible in its implementation.

The importance of role models in the development of a pro bono culture must be emphasized.

Therefore, ASF is set to continue its efforts to raise the awareness of local stakeholders in the countries where it works, in order to clarify the mechanisms already put in place by certain Bar Associations (particularly in

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the United States, the United Kingdom and in Quebec but also in South Africa and Brazil) where the pro bono culture is particularly developed or is starting to become so (Nepal).

To this end (cf. below), the “ILN pro bono model” and those of international law firms could clearly serve as an example.

This awareness raising should take into account the risk that the Bar Association or certain lawyers, or even the public authorities, may view pro bono as constituting unfair competition within the context of the “legal marketplace” and therefore as a factor causing loss of income, rather than a complementary mechanism for effective access to justice by the most vulnerable.

It is therefore important to highlight the benefits and the medium and long term challenges associated with such activities, including the development of the “legal marketplace” for the lawyers themselves.

Such a strategy has enabled ASF to launch a host of innovative activities in this context in Nepal in 2009-2010, led by dozens of lawyers in five Bar Associations of this South Asian country acting solely on a pro bono basis.

It is important in this regard that each mission, depending on its specific relationship with the local Bar Association, is able to propose how to incorporate the promotion of pro bono services in its strategy of intervention alongside these Bar Associations.

B. The role of the ILN a. The ILN pro bono model - Introduction Launched in 2010, the International Legal Network (ILN) of ASF brings together over 200 lawyers and jurists who wish to share their experience and expertise for the benefit of vulnerable people, victims of injustice and human rights defenders.

From March 2010 to April 2011, approximately 40 of these lawyers and jurists were directly involved in activities to support ASF programmes, both in the field and from their place of work.

This contribution has allowed ASF’s capacity for action to be strengthened considerably. The feedback obtained from local ASF missions has demonstrated the value added by members of the ILN and thus the importance of this type of initiative in the context of ASF’s work.

- Influence of the model The network of ILN lawyers/jurists has developed very quickly.

Every day we receive new membership applications from lawyers from diverse backgrounds, legal cultures and professional traditions.

Some of them are also members of our “partner” Bar Associations.

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It is clear that the ILN is destined to become an essential tool for strengthening not only ASF’s capacity for action or the capacity for action of other partners with the same mandate but also the culture and practice of pro bono. As such, the ILN should serve as a model, in the countries where ASF works and the pro bono commitment of those lawyers must be demonstrated to local lawyers.

In May 2011, a survey carried out among members of the ILN, focusing in particular on the reasons for their commitment, confirmed the importance to them of the development of pro bono service. b. Estimate of the hours/budget of ILN pro bono activities After one year of operation of the ILN, ASF has also launched an evaluation of how to quantitatively measure (in terms of hours worked and availability) the commitment of each member of the ILN who has been directly involved in ASF’s activities, based on the practice of international law firms or "Clearing Houses".

C. The contribution of international law firms a. The association of international law firms with ASF’s ILN Lawyers from international law firms have a great deal of technical expertise in a wide range of areas, usually in the area of business law (contract law, company law, corporate governance, banking/stock exchange law, tax law, labour law, etc.).

The ILN enables certain lawyers from these law firms to get involved in ASF’s new focal area of socio-economic rights, especially on topics such as corporate social responsibility, conflicts of interest (see point 3.2.3), etc. but also in the promotion of pro bono itself. b. Promotion of pro bono to lawyers in countries where ASF works As previously stated, ASF works directly with local law firms and lawyers in order raise awareness of the social responsibility of the profession to ensure access to justice for everyone.

In this regard, the support of international law firms is currently very important for ASF in order to make national Bar Associations in the countries where ASF works cognizant of the positive impact that a professionally implemented pro bono policy can have on a law firm (whether it be a law firm of international or national reach).

When they participate in pro bono projects, international law firms underline the following benefits: -

strengthening of the law firm’s brand image with the general public (which clearly has a positive impact on the “billable” business of the law firm); development of the skills of the law firm’s employees (younger employees develop their skills when undertaking a pro bono case: in drawing up of legal documents, in work on the strategy to adopt for a case, in negotiations, in defence of a case in court, and in development of their sense of responsibility);

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attraction and retention of employees – pro bono can be used as a recruitment tool: the interest of pro bono work for law students is of increasing importance and law firms are often questioned about their pro bono policy. Participation in pro bono programmes builds employee morale and can simultaneously reduce the high turnover of staff that is common in such law firms (this is particularly true for members of Generation Y); strengthening of contacts with certain clients (particularly those who share the pro bono vision) as well as the development of a new clientele; and in some cases, the processing of pro bono cases can result in a tax advantage.

These law firms usually have international desks, particularly in Africa, Asia and South America. They can therefore contribute on the one hand by providing important information on professional practice in these environments and on the manner in which pro bono is perceived or practiced there, and on the other hand, by promoting pro bono. c. Support to ASF programmes (Fundraising) Financial support from certain law firms for one-off activities, particularly emergency interventions, could also be possible.

In exchange, international law firms could highlight this collaboration and thereby enhance their image, or conversely they may choose not to publicise such collaboration, due for example to a potential conflict of interest.

3.2.2. The cost issue of pro bono work A.

The human and financial impact of pro bono work

In accordance with the generally accepted definition of pro bono (cf. point 2.1), lawyers who work on this basis do so in a spirit of selflessness and their services are therefore unpaid.

However, the burden (financial or otherwise) shouldered by the law firms employing these lawyers/jurists may be quite heavy, particularly when this concerns small firms (or even sole practitioners) and the lawyers are working on cases for a relatively long period (e.g. monitoring of emblematic cases, on site coaching missions, etc.). Even though the financial burden is not that heavy for large international firms, lawyers employed there are hardly ever able to absent themselves from their firms for a month in order to perform pro bono missions, contrary to lawyers (even senior ones) from smaller firms. Only lawyers that are free of such constraints are able to provide their services for long periods. As a result, 90 % of the members of the ILN are lawyers from small and medium-sized firms.

B.

Compensated pro bono work

Based on the fact mentioned above that currently over 90% of the members of the ILN are lawyers from small and medium-sized firms, consideration should be given to the provision of compensation to the law

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firm in exchange for the financial burden of taking on some kinds of pro bono work.

When lawyers commit themselves for a minimum period of x weeks, compensation would be paid to their law firm. Such compensation should not affect the voluntary nature (pro bono) of the commitment of these lawyers/jurists; it is simply a means to allow lawyers to commit themselves for longer periods without having to worry about their absence having a substantial negative impact on their own activities and without having to worry about their law firm opposing such missions due to the length of absence.

It should be noted that some donors, including DFID, are already funding such contributions.

3.2.3. The issue of conflict of interest The issue of “conflict of interest” is central to the practice of all lawyers.

It is thus clearly an issue that is present within the context of pro bono work, specifically in cases when a law firm may be required to act in a context where one of its clients has strong interests.

This is the case for example with cases concerning economic and social rights for which a company can be held responsible: some international law firms have the required expertise to support such efforts, but will in fact be very vigilant and even reluctant to intervene due to the risk of a conflict of interest with one of their clients.

The clientele of these law firms in fact regularly includes companies whose practices are denounced as abusive by various NGOs representing the interests of local communities.

ASF is examining the necessary procedures in order to prevent these conflicts and to take into account the “limitations” of these law firms as regards their ability to take on certain cases on a pro bono basis.

4. Conclusion The strategy for the development of pro bono work with lawyers who practice their profession in countries where ASF works is more than ever a significant challenge for ASF. To enable pro bono work to really become established as a complementary access to justice mechanism (alongside compensated legal aid) in countries where ASF works, reference to models of good practices in this field is extremely important (Bar Associations, ILN and international law firm models), as is the consideration of certain realities, especially economic, that are likely to constitute obstacles to development of this strategy.

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